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[Federal Register Volume 89, Number 246 (Monday, December 23, 2024)]
[Rules and Regulations]
[Pages 104450-104453]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-30311]

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

45 CFR Part 5b

[Docket Number ACF-2024-0015]
RIN 0970-AD15

Privacy Act; Implementation

AGENCY: Administration for Children and Families (ACF), Department of 
Health and Human Services (HHS).

ACTION: Direct final rule with request for comments.

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SUMMARY: In accordance with subsection (k)(2) of the Privacy Act of 
1974, as amended (the Privacy Act or the Act), the Department of Health 
and Human Services (HHS or Department) is exempting a new system of 
records maintained by the Administration for Children and Families 
(ACF), Office of Refugee Resettlement (ORR), Unaccompanied Children 
Bureau (UCB), System No. 09-80-0323, ``ORR Unaccompanied Children 
Bureau (UCB) Child Abuse or Neglect Investigation Records and Central 
Registry,'' from certain requirements of the Privacy Act.

DATES: This rule is effective February 6, 2025, without further action, 
unless adverse comments are received. If adverse comments are received, 
a timely notification of withdrawal will be published in the Federal 
Register. Submit either electronic or written comments regarding this 
document no later than January 22, 2025.

ADDRESSES: Submit comments, identified by agency name and Docket No. 
ACF-2024-0015, by any of the following methods:

[[Page 104451]]

Electronic Submissions

    Submit electronic comments in the following way:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.

Written Submissions

    Submit written submissions in the following ways:
     Mail: Hanan Abu Lebdeh, Senior Agency Officer for Privacy, 
by mail at Administration for Children and Families, Mary E. Switzer 
Building, 330 C Street SW, Washington, DC 20201, or by email at 
[email protected].
    Instructions: All submissions received must include the agency name 
and Docket No. for this rulemaking. All comments received may be posted 
without change to https://www.regulations.gov, including any personal 
information provided.
    Docket: For access to the docket to read background documents or 
comments received, go to https://www.regulations.gov and follow the 
instructions provided for conducting a search, using the docket 
number(s) found in brackets in the heading of this document.

FOR FURTHER INFORMATION CONTACT: General questions about the exemptions 
may be submitted to Toby Biswas, Director, Division of Unaccompanied 
Children Policy by mail at 330 C Street SW, Washington, DC 20201, email 
at [email protected], or phone at 202-205-4440.

SUPPLEMENTARY INFORMATION:

I. Background on New System of Records 09-80-0323

    HHS/ACF recently published notice of its establishment of a new 
system of records 09-80-0323, ``ORR Unaccompanied Children Bureau (UCB) 
Child Abuse or Neglect Investigation Records and Central Registry,'' in 
the Federal Register; see 89 FR 96250 (Dec. 4, 2024). The purpose of 
this rulemaking is to exempt that system of records from certain 
requirements of the Privacy Act as permitted by 5 U.S.C. 552a(k)(2). 
The new system of records will consist of investigatory material 
compiled and maintained by the UCB about reports and investigations of 
child abuse and neglect, allegations at ORR care provider facilities 
located in States that will not investigate such reports, as well as at 
ORR Emergency or Influx Facilities. It will include a Central Registry 
of ORR care provider facility staff and volunteers determined by ORR, 
pursuant to ORR regulations and policies, to have a sustained 
allegation of child abuse or neglect of a child while the child was in 
ORR custody. The Central Registry will be used to vet prospective 
candidates to ensure that individuals on the registry are not permitted 
to work on ORR grants or contracts or have access to unaccompanied 
children at ORR care provider facilities.

II. Eligible Records and Exemptions

    New system of records 09-80-0323 will include both criminal and 
non-criminal (e.g., civil, administrative, regulatory) investigatory 
records of reports of child abuse and neglect allegations at ORR care 
provider facilities located in States that will not investigate such 
reports, as well as at ORR Emergency or Influx Facilities, which will 
be retrieved by subject individuals' personal identifiers. Such records 
are eligible for exemptions based on 5 U.S.C. 552a(k)(2), permitting 
investigatory material compiled for law enforcement purposes to be 
exempted from sections (c)(3), (d)(1) through (4), (e)(1), (e)(4)(G) 
through (I), and (f) of the Privacy Act, which require the agency to 
provide an accounting of disclosures; provide notification, access, and 
amendment rights to record subjects; maintain only relevant and 
necessary information to accomplish a purpose of the agency; establish 
and describe procedures whereby an individual can be notified if a 
system of records contains information pertaining to that individual 
and how to gain access to pertinent records; identify categories of 
record sources; and promulgate rules regarding these procedures. This 
exemption is available under the circumstances described here even 
though ORR is not a law enforcement agency. The effect of the access 
exemption on a subject individual's access rights will be limited as 
required by subsection (k)(2): If, as a result of the maintenance of 
the investigative records, an individual is denied any right, benefit, 
or privilege to or for which the individual would otherwise be entitled 
or eligible by Federal law, ACF will disclose the record to the 
individual, except to the extent that the disclosure would reveal the 
identity of a source who furnished information to the government under 
an express promise that the identity of the source would be held in 
confidence.
    Notwithstanding the establishment of these exemptions, individual 
record subjects may submit accounting, access, notification, and 
correction requests, and HHS/ACF will consider such requests on a case-
by-case basis. Only information that is not factually accurate, or is 
not relevant, timely, or complete may be contested.
    In addition to the exemptions that HHS/ACF is establishing for 
system of records 09-80-0323 in this direct final rule, if any 
investigatory material compiled in that system of records is from 
another system of records in which such material was exempted from the 
Privacy Act based on 5 U.S.C. 552a(j)(2), HHS/ACF will claim the same 
exemptions in system of records 09-80-0323 on the same basis (i.e., 5 
U.S.C. 552a(j)(2)) and from the same requirements as in the source 
system of records from which they originated.

III. Exemption Rationales

    The exemptions are necessary and appropriate to prevent 
interference with and ensure the integrity of pending, closed, future, 
and related investigations of alleged child abuse and neglect, protect 
the identity of children and confidential sources involved in the 
investigations, and prevent disclosure of investigative techniques. The 
following specific rationales explain why each exemption is necessary 
and appropriate for the records in system of records 09-80-0323. All 
subsections referenced are subsections of 5 U.S.C. 552a.
     Subsection (c)(3) (Provide Accountings of Disclosures). 
Providing an accounting of disclosures to an individual record subject 
could reveal the existence of a pending or prior investigation or 
present or past investigative interest on the part of the UCB or 
another agency. This would pose a serious impediment to and undermine 
the investigative process by enabling a subject individual or others in 
concert with that individual to harass, intimidate, or collude with 
witnesses, destroy, conceal, or tamper with evidence, threaten or 
endanger investigative personnel, alter patterns of behavior, and avoid 
detection or apprehension by investigative authorities, which would 
undermine the investigative process.
     Subsection (d)(1) through (4) (Notification, Access and 
Amendment Rights). Providing subject individuals with notification, 
access, and amendment rights to records in the system of records could 
reveal the existence of a pending or prior investigation or present or 
past investigative interest by the UCB or another agency and details 
about the investigation, including identities and personal information 
of children involved in the investigation, of sources of information, 
personal information about third parties, and sensitive investigative 
techniques, which could hinder or impede pending and future

[[Page 104452]]

investigations by chilling or deterring sources of information from 
providing information to investigators (particularly if they are not 
certain of its accuracy or if they fear retribution), by providing an 
opportunity for subject individuals and others acting in concert with 
subject individuals to tamper with witnesses or evidence, and by 
allowing individuals to alter their behavior to defeat investigative 
techniques and avoid detection or apprehension. Complying with 
amendment requirements could significantly delay investigations while 
attempts are made to resolve questions of accuracy, relevance, 
timeliness, and completeness and would impose an unreasonable 
administrative burden by requiring investigations to be continuously 
reinvestigated.
     Subsection (e)(1) (Maintain Only Relevant and Necessary 
Information Authorized by Statute or Executive Order). In the course of 
an investigation, and especially in the early stages of an 
investigation, the relevance and necessity of information obtained or 
introduced may be unclear or the information may not be strictly 
relevant or necessary to a specific investigation but may lead to 
discovery of relevant information. In the interests of effective 
enforcement of ORR requirements, it is appropriate to retain all 
information that may aid in establishing patterns of unlawful activity.
     Subsections (e)(4)(G) and (H) and (f) (Describe Procedures 
for Notification, Access, and Amendment). Because system of records 09-
80-0323 will be exempt from request requirements in subsection (d)(1) 
through (4) (Provide Notification, Access, and Amendment Rights) and 
HHS/ACF's compliance with those request requirements will therefore be 
discretionary, it is appropriate that HHS/ACF's compliance with the 
requirements in subsection (e)(4)(G) and (H) and (f) to provide request 
procedures be discretionary also. Notwithstanding these exemptions, 
HHS/ACF has included request procedures in the SORN for system of 
records 09-80-0323 because, notwithstanding the exemptions, individual 
record subjects may submit access and amendment requests, and HHS/ACF 
will consider such requests on a case-by-case basis.
     Subsection (e)(4)(I) (Identify Categories of Record 
Sources in the SORN). Because the information in these records may come 
from any source, it is not possible to know every category in advance 
in order to include them all in the SORN. Further, some record source 
categories would not be appropriate to publish in the SORN if, for 
example, revealing them could thwart or impede pending and future 
investigations by enabling record subjects or other individuals to 
discover sensitive investigative techniques and devise ways to bypass 
or defeat them to evade detection and apprehension.
     Subsection (f) (Agency Rules). As noted above, 
establishing procedures to notify record subject individuals, to review 
requests from individuals, and to disclose records to subject 
individuals could reveal the existence of an investigation or an 
investigative interest by the UCB or another agency and details about 
the investigation and sensitive investigative techniques, which could 
hinder or impede pending and future investigations by chilling or 
deterring sources of information from providing information to 
investigators (particularly if they are not certain of its accuracy or 
fear retribution), by providing an opportunity for subject individuals 
and others acting in concert with subject individuals to tamper with 
witnesses or evidence, and by allowing individuals to alter their 
behavior to defeat investigative techniques and avoid detection or 
apprehension. Notwithstanding the exemptions, individual record 
subjects may submit access and amendment requests, and HHS/ACF will 
consider such requests on a case-by-case basis.
    For the foregoing reasons, HHS/ACF believes that the exemptions 
authorized in 5 U.S.C. 552a(k)(2) are essential to system of records 
09-80-0323.
    Accordingly, HHS exempts both criminal and non-criminal 
investigatory material in system of records 09-80-0323, ``ORR 
Unaccompanied Children Bureau (UCB) Child Abuse or Neglect 
Investigation Records and Central Registry,'' from the requirements in 
subsections (c)(3), (d)(1) through (4), (e)(1), (e)(4)(G) through (I), 
and (f) of the Privacy Act, as permitted by 5 U.S.C. 552a(k)(2).

Analysis of Impacts

I. Review Under Executive Orders 12866, 13563, and 14094

    The agency believes that this direct final rule is not a 
significant rule under Executive Order (E.O.) 12866, Regulatory 
Planning and Review; E.O. 13563, Improving Regulation and Regulatory 
Review; or E.O. 14094, Modernizing Regulatory Review, because it will 
not (1) have an annual effect on the economy of $200 million or more; 
or adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or Tribal governments or 
communities; (2) create a serious inconsistency or otherwise interfere 
with any action taken or planned by another agency; (3) materially 
alter the budgetary impact of entitlements, grants, user fees or loan 
programs, or the rights and obligations of recipients thereof; or (4) 
raise legal or policy issues for which centralized review would 
meaningfully further the President's priorities or the principles set 
forth in these Executive orders. This direct final rule renders certain 
Privacy Act requirements inapplicable to certain records (in this case, 
investigatory records) in accordance with criteria established in the 
Privacy Act based on a showing that agency compliance with those 
requirements with respect to those records would harm the effectiveness 
or integrity of the agency function or process for which the records 
are maintained (in this case, investigations). However, the Office of 
Management and Budget has reviewed this regulation under its Privacy 
Act oversight authority.

II. Review Under the Regulatory Flexibility Act (5 U.S.C. 601-612)

    The Regulatory Flexibility Act requires agencies to analyze 
regulatory options that would minimize any significant impact of a rule 
on small entities. Because the direct final rule concerns records about 
individuals, it imposes no duties or obligations on small entities; the 
agency therefore certifies that the direct final rule will not have a 
significant economic impact on a substantial number of small entities.

III. Review Under the Unfunded Mandates Reform Act of 1995 (Section 
202, Public Law 104-4)

    Section 202(a) of the Unfunded Mandates Reform Act of 1995 requires 
that agencies prepare a written statement, which includes an assessment 
of anticipated costs and benefits, before proposing ``any rule that 
includes any Federal mandate that may result in the expenditure by 
State, local, and tribal governments, in the aggregate, or by the 
private sector, of $100,000,000 or more (adjusted annually for 
inflation) in any one year.'' The current inflation-adjusted statutory 
threshold is approximately $183 million based on the Bureau of Labor 
Statistics inflation calculator. The agency does not expect that this 
direct final rule will result in any one-year expenditure that would 
meet or exceed this amount.

[[Page 104453]]

IV. Review Under the Paperwork Reduction Act of 1995 (44 U.S.C. 35-1 et 
seq.)

    This direct final rule does not contain any information collection 
requirements subject to the Paperwork Reduction Act.

V. Review Under Executive Order 13132, Federalism

    This direct final rule will not have any direct effects on States, 
on the relationship between the National Government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. Therefore, no federalism assessment is required.

List of Subjects in 45 CFR Part 5b

    Privacy.

    For the reasons set out in the preamble, the Department of Health 
and Human Services amends its Privacy Act Regulations, 45 CFR part 5b, 
as follows:

PART 5b--PRIVACY ACT REGULATIONS

0
 1. The authority citation for part 5b continues to read as follows:

    Authority:  5 U.S.C. 301, 5 U.S.C. 552a.

0
2. Section 5b.11 is amended by adding paragraph (b)(4) to read as 
follows:

Sec.  5b.11  Exempt systems.

* * * * *
    (b) * * *
    (4) The following systems of records are exempt from the following 
provisions of the Act and this part: 5 U.S.C. 552a(c)(3) and Sec.  
5b.9(c)(3), which require a subject individual to be granted access to 
an accounting of disclosures of a record; 5 U.S.C. 552a(d)(1) through 
(4) and (f) and Sec. Sec.  5b.6, 5b.7, and 5b.8, relating to 
notification of or access to records and correction or amendment of 
records; and 5 U.S.C. 552a(e)(4)(G) through (I) which require inclusion 
of information about Department procedures for notification, access, 
and correction or amendment of records and categories of record sources 
in the notice for the systems of records.
    (i) Pursuant to subsection (k)(2) of the Privacy Act:
    (A) ORR Unaccompanied Children Bureau (UCB) Child Abuse or Neglect 
Investigation Records and Central Registry, 09-80-0323.
    (B) [Reserved]
    (ii) [Reserved]
* * * * *

    Dated: December 16, 2024.
Xavier Becerra,
Secretary, Department of Health and Human Services.
[FR Doc. 2024-30311 Filed 12-20-24; 8:45 am]
BILLING CODE 4184-45-P
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